Access and Rights - L2

Question 1

What powers to Electricity companies have?

Answer 1

Under the Electricity Act 1989, licence holders have compulsory purchase powers, however usually negotiate a wayleave or easement).

Question 2

What is the main difference between the powers of electricity companies and water companies?

Answer 2

Water companies can just serve notice to lay pipes and enter for surveying under Water Industry Act 1991, as amended by the Water Act 2003.

Question 3

What notice would a water company serve to lay a pipe on private land?

Answer 3

s159 notice, giving 3 months notice for new pipes and 42 days notice for works to existing, unless in an emergency.

Question 4

What notice would a water company serve to compulsorily purchase land?

Answer 4

s155 notice.

Question 5

What is the difference between an easement and a wayleave?

Answer 5

An easement is an interest in property where one owner has a right for the benefit of his land (dominant tenement) over the land of another (servient tenement). It is likely to be a Deed, in perpetuity and registered with land registry. It is transferable in title.
A Wayleave is a right on, in, or over property, made with the property owner and is usually shorter term and terminable. Can serve NTQ and Notice to remove.

Question 6

If a landowner serves Notice to remove on an electricity company, what can that company do?

Answer 6

Under schedule 4 of the Electricity Act 1989, the electricity company can apply for a necessary wayleave within 3 months.

Question 7

What is a necessary wayleave?

Answer 7

Following a NTQ or NTR and failed negotiations, SoS can call a wayleave hearing to review the need for that equipment to be there in support of the electricity companies duties. Usually the landowner looses as the case is too strong for the equipment to be removed and the SoS awards a necessary Wayleave for a term certain (usually 15 years), which then becomes periodic.

Question 8

What compensation can be payable by water companies?

Answer 8

Schedule 12 of the Water Industry Act 1991, as amended states that compensation should be paid for the depreciation in value of an interest in land (usually 50% of MV) and any other loss or damage. Reference should be made to Land Compensation Act 1961

Question 9

What rules does the Land Compensation Act 1961 set out?

Answer 9

Section 5 sets out 6 rules that apply to compensation payable -
1.) No allowance for the fact that the acquisition is compulsory
2.) Market value shall be taken considered
3.) If the land has a suitability only applicable to that authority, it should not be taken into account or given any special value.
4.) If the value is increased by certain use (maybe illegal or detrimental to health), that increase shall not be taken into account
5.) If the use of the land is such that there is no market or evidence for its value, the reinstatement of such can be transferred somewhere else, which can be seen as adequate compensation.
6.) The value for the land compensated does not affect the assessment for compensation for disturbance or any other matter.

Question 10

What powers do gas companies have?

Answer 10

Under Gas Act 1986, as amended in 1995, they can compulsorily purchase land and carry out street works. This is very limited so they usually negotiate an easement.

Question 11

What compensation can be payable by gas companies?

Answer 11

Part II of Schedule 3 states that depreciation in land, as well as any damage should be compensated. Case law displays 85% of MV of area of easement. Compensation is payable for loss of turnover incurred by small businesses where works were over 28 days.

Question 12

What compensation can be payable by electricity companies companies?

Answer 12

Schedule 3 for permanent easements, compensation is payable for land taken, severance and injurious affection and disturbance. Schedule 4 governs compensation for Wayleaves which is the same as above

Question 13

How did you value the consideration for the private easement that you negotiated?

Answer 13

Valued the uplift in the value of the property due to the secondary access using comparable evidence £45,000, then used Stokes vs Cambridge as starting point, then pulled back to 1/5th as secondary and not essential. = £9,000

Question 14

How did you determine the licence fee with Network Rail?

Answer 14

I asked senior colleagues to advise on recent licence fees agreed, and what type of projects they were for. Assessed the nature of the licence and ascertained a suitable fee. I did however negotiate that it would be due to both parties, rather than splitting it.

Question 15

What is a tri-partite agreement?

Answer 15

An agreement with three parties. In this case, it was Network Rail, the Landlord and the Tenant.

Question 16

Why did you carry out a record of condition?

Answer 16

To record the state of the land prior to the access, so that in any circumstance NR caused any damage, there was a clear, unquestionable record of what it’s condition should be.

Question 17

How would you have dealt with reinstatement / compensation if required after the Network Rail access?

Question 18

What is included within the Heads of Terms for the easement with UKPN?

Answer 18

The property
Grantor
Grantors solicitors
UKPN details
Easement strip
Consideration
Rights granted
Covenants (damage, carry out works well)
Grantors covenants (not to obstruct or interfere)
Allocation of costs
How the easement will be documented
Plan

Question 19

How was the easement consideration calculated?

Answer 19

UKPN have a standard rate per m

Question 20

What rights do UKPN have to access land for line clearance?

Answer 20

Usually wayleave or easement in place that will specify the rights to access for clearance and other works, and it is expected that UKPN would be responsible for maintaining and protecting their equipment.

Question 21

What was the s159 notice for and how did you deal with it?

Answer 21

This was a relatively minor notice of intended works, to locate a missing valve and excavate a small area by hand.
I had to agree where the operatives could park, as it was on Estate land and take a record of condition prior to the commencement.
I notified the tenant farmer, who unlocked two gates to allow access.

Question 22

What was included within the Heads of Terms for the easement for the secondary access?

Answer 22

Grantor
Grantee
Easement area
Use
Restriction on use for only one dwelling / no further development
Solicitor details
Consideration
Works / specification

Question 23

What are the options if Thames Water do not agree to reinstate the land?

Answer 23

Complaint to Ofwat - but i am aware that they cannot investigate disputes about compensation or make any award of over £5,000.
Solicitors letter

Question 24

What are the powers does the Railways Regulation Act 1942 give railway companies?

Answer 24

Section 14 allow Railways companies access to private land for survey and works where there is a risk to public safety, say in relation to a landslip or accident.
Section 15 allows a Railway company to compulsorily acquire land to allow permanent works necessary for ensuring public safety. This is rarely exercised as it cannot be done on land previously owned by the company (say for the building of the railway).

Question 25

What is a DCO?

Answer 25

Development Consent Order - a statutory process for NSIP’s and applies to railways if over 2km outside the operational railways boundary.
They provides rights to compulsorily purchase land or rights over land, closure of roads, and some specific planning permissions, but not permission for the whole project.

Question 26

Can Network Rail just enter private land for surveys?

Answer 26

So they are initially obliged to try to negotiate a licence, however if there is a continuous failure in negotiations and the relevant timeframes have been met, the railways company can exercise s71 rights under the British Railways Act 1981.

Question 27

What would have happened if Network Rail had disputed the proposed Licence fee?

Answer 27

Negotiations. I believed the licence fee i proposed was suitable.

Question 28

You refer to the Gas Act 1986, is there a more recent act?

Answer 28

Yes, the Gas Act 1995, but the 86 Act set out the fundamental powers for Gas companies, and the 95 Act just built upon that, rather than reformed it.

Question 29

Who are Gas Transporters regulated by?

Answer 29

OFGEM

Question 30

What did the Gas Act 1995 bring in?

Answer 30

That small business’ affected by Gas works of over 28 days, where the loss was over 2.5% of turnover, can claim compensation.

Question 31

Who can landowners complain to about water companies?

Answer 31

OFWAT

Question 32

What is the usual width of an easement for a water pipe?

Question 33

What is the statutory notice period for laying a new water pipe under a S159 of the WIA?

Answer 33

3 months

Question 34

What is the statutory notice period for altering an existing water pipe under a S159 of the WIA?

Answer 34

42 days, or if an emergency, no notice.

Question 35

What is an NSIP?

Answer 35

Nationally Significant Infrastructure Project
Major infrastructure development that bypass normal local planning requirements